Saturday, 26 May 2007

Brisbane lawyer and academic Zoe Rathus has criticised the impact of the recent decision in Goode and Goode.

The Bad in Goode: A case note about the implications of Goode where allegations of family violence have been made

Introduction

On 15 December, 2006, the Full Court of the Family Court handed down judgment in an appeal against an interim parenting decision made on 10 August, 2006 – just over one month after the new reforms of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (C’th) commenced operation. The Full Court’s judgment deals mainly with how interim hearing decision-making should occur in light of the reforms, but it also touches on the interpretation of many critical aspects of the new legislative regime relevant to how family violence will be dealt with in practice under the new regime.

Shifting the Gaze

In this case note I argue that the 2006 reforms tend to shift the gaze of the court, and other parts of the family law system, away from the history of the intact family towards post separation events and a new ideal future. This tends to minimise or conceal past family violence and render it of little relevance to the critical prediction of risk of harm to children required to ensure their protection from physical or psychological harm under ss60B(1)(b) and ss60CC(2)(b). The procedural provision related to family violence, s60K, seems awkward in its application and is perhaps under-utilised, the ‘friendly parent’ provision, ss60CC(3)(c), turns a microscope on the post-separation attitude and conduct of the initial ‘informal’ residence parent, usually the mother, while the costs provisions relating to ‘false allegations’ can render the past violence dangerous for a party to raise.

This note seeks to demonstrate how some of these concerns may play out in cases, using the decision in Goode as an example.

Facts

The parties separated in ‘late May 2006’ and the mother instituted proceedings on 26 May – therefore very shortly after separation. There are two children aged 8 and 2. It seems that the father instigated the separation, leaving the mother and children in the marital home. During the relationship both parents were quite involved in the children’s care and the paternal grand-parents also played a role. It seems uncontested, however, that the mother provided the most significant care for the children and it was her case that she was the primary carer. The mother also alleged a history of domestic violence.

At the time of the interim hearing there was an arrangement in place whereby the children spent every alternate weekend with their father, plus some mid-week time for the 8 year old. Deciding ultimately to apply traditional interim hearing decision-making, Justice Collier ordered that the prevailing arrangements continue until final trial.

Allegations of family violence

During the consultation process for the reforms the Federal Government was challenged by many commentators about the problems that a favoured ‘shared parenting’ regime may bring to raising allegations of violence. However, the Attorney-General who has shepherded through these reforms, the Hon Philip Ruddock, MP, disputes that claim explaining that the ‘Government has listened very carefully to the concerns raised and has amended the new laws to ensure they do not expose people to more violence.’

It is my contention that Goode demonstrates precisely how the new package silences violence while appearing to take note of it. The mother made quite serious allegations of family violence:

• ‘that she was subjected to physical abuse by the appellant father after the first few months of marriage’;

• [that] ‘when she was pregnant he pushed her onto the floor’;

• [that] ‘on another occasion  the  father pushed her and then slapped her with an open hand’;

• ‘that in January 2006 she and the appellant father had an argument in which she was physically abused and thrown around the bedroom. This incident  was sufficiently serious that she could not attend work the next day’.

• [that there were] ‘numerous other examples of violence during the marriage’.

Because of these allegations Justice Collier felt unable to apply the presumption of equal shared parental responsibility (ESPR). He was also not able to find that the presumption had definitely been rebutted, ‘because he could not be satisfied on reasonable grounds that [family violence] had occurred’.

Is s60K useful?

According to the heading , section 60K requires a court to ‘take prompt action in relation to allegations of child abuse or family violence’. It seems, however, that the unwieldy and extra processes required to trigger s60K perhaps renders this section unhelpful. To activate this provision a Form 4 Notice of Child Abuse or Family Violence must be filed. If the Form 4 alleges that ‘there has been family violence by one of the parties to the proceedings’ the court has to consider ‘what interim or procedural orders (if any) should be made’ to gather evidence, protect parties and children and deal with issues raised expeditiously.

It seems most unfortunate and dangerous for victims of family violence that the operation of this section depends on the filing of a special form. The mother clearly alleged family violence in her affidavit but no protective procedural steps were instigated. The interim hearing gave priority to sorting out post-separation parenting arrangements for the children even though the parents had only recently separated, rather than finding out the nature and frequency of any family violence which had occurred and how that may be relevant to ascertaining what arrangements are likely to be in the best interests of the children taking into account ss60B(1)(b) ss60CC(2)(b) and ss60CC(3)(j) and (k) and even (f) and (i).

The Full Court does not mention s60K. Is there a misapprehension that s60K is only about child abuse? Had the mother’s lawyers filed a Form 4? Perhaps this is not the usual practice in cases where family violence, rather than direct child abuse, is alleged. Perhaps there would just be too many Form 4 cases if it were. But there is little point in developing systems to properly deal with family violence if they are not triggered by allegations of violence.

How do women raise past violence?

It is arguable that the new amendments establish a strange separation of the prediction of risk of harm to children from the determination of the nature and relevance of any alleged history of abuse. The predictive decision-making occurs in accordance with the apparently protective provisions, ss60B(1)(b) in the ‘objects’ clause and 60CC(2)(b) in the ‘primary considerations’ provision. These provisions invite speculation about the future, probably with strong reliance on the expert evidence of a social scientist. Conversely, a determination of allegations of abuse would enable a court to consider the relevance of these findings when exercising its predictive judgment.

Logically a decision about future risk should rely significantly on findings about past abuse, but the new structure seems to suggest that risk can be predicted before or without a determination about past abuse. It is part of the shifting of the gaze to the post separation past and the future which underlies these changes and obstructs critical decision-making about violence.

The Full Court quoted from the submission of the mother’s solicitor at the interim hearing:

How [the] exemption to [the ESPR] presumption applies  in an interim hearing is a little more difficult to discern, because if one takes the analogy, for example, of an apprehended violence order in the State system, a Court can only issue such an order if the fear that a person has about violence to themselves is reasonable. And usually the grounds for that reasonableness, or that assessment of reasonableness, are based upon the Court’s assessment as to the truth  of allegations of violence that have occurred in the past .

The mother’s solicitor is correct here – so when can a party expect the court to examine the past to anticipate the future? For example, in this matter, will there ever be a final trial? There has already been an interim hearing and an appeal to the Full Court of the Family Court – and the case has been remitted for a second interim hearing. It seems possible that this matter will settle long before a final trial as the parties may not have the financial and emotional resources to keep litigating.

If the matter settles, this may be good for the children and the parents but only if the terms of settlement reflect and acknowledge any violence which has occurred. If it has never been proved, the mother has no basis to negotiate terms in the light of what appears to be, at least, her perceived reality.

Even the matter proceeds to a trial, it is difficult for parties to make family violence relevant to decision-making. Kaspiew’s empirical study into violence in contested children’s cases led her to conclude that:

 the violence must be of an extreme nature, and have a very firm evidential basis, before it can be argued to be a ‘disqualifying’ factor in residence or contact applications.’

Risk of costs order – s117AB

If a court ever assesses that the mother’s allegations are not ‘the truth’ – s117AB is triggered and costs should be mandatorily ordered against the mother for making ‘false allegations’. This is likely to dissuade the mother from pressing the point.

It must also be remembered that family violence now has to be proved objectively as a result of changes to the definition of family violence in s4 FLA. The mother must have ‘reasonably’ feared for her personal well-being or safety.

The ‘unfriendly parent’ – s60CC(3)(c)

Another section which militates against the mother’s ability to raise the violence successfully is ss60CC(3)(c) which requires the court to take into account ‘the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent’. It is interesting that in one discussion of the facts of the case the Full Court starts with the observation that:

For two weeks after separation until 9 June, 2006 the appellant father deposed that the respondent mother did not allow the children to spend any time with him.

While nothing seems to turn on this point in the judgement, it shows how significant s60CC(3)(c) could become. A mother who is difficult about contact will have that point made against her very quickly. Her conduct since separation and her attitude towards the father’s contact with the children will be very influential in decision-making and it is obviously parents who are worried about abuse who are most likely to collide with this subsection.

Anecdotally the risk of a mothers being labelled ‘unfriendly parents’ is already permeating advice by solicitors to their female clients in Australia. Women are advised not to raise the violence and, therefore, engage in settlement negotiations where there is silence about the violence .

Why did the mother concede ‘there was no issue of risk to the children’?

It is apparent from the judgment that the mother conceded that ‘there was no issue of risk to the children’ . Why did she do that? What did she mean by ‘no risk’? Was it too hard to explain the kinds of emotional and psychological abuse exerted? Did she not define these as amounting to harm? Is it because there was no direct violence? What must women be concerned about for their children before they can legitimately suggest ‘risk’?

It is also possible that this concession might actually expose the mother to a costs application under s117AB. If she now concedes there is no risk to the children, this opens the way for the father to argue that her allegations about violence must be untrue or not totally true.

When must equal, or substantial and significant time, be considered?

Still relevant even when presumption of ESPR rebutted or not applied

Under a straight forward reading of the amendments, the new provision relating to the consideration of equal time type shared parenting arrangements by a court is triggered where an order for ESPR has been made or is to be made. However, the Full Court suggests that the court is required to consider such arrangements whether or not it has applied the presumption. According to the Full Court:

 whilst the application of the presumption of equal shared parental responsibility may be the trigger for the operation of s 65DAA, it is not the only basis upon which the Court may make an order for equal or substantial and significant time to be spent by the parents with the child .

It suggests that ‘[e]ven if the presumption is rebutted or is not to apply in the interests of the child’ equal time type arrangements would have to be considered ‘if one or both of the parties is seeking such an order’. In fact, according to the Full Court, even if such an application has not been made, the court should always consider arrangements that promote the best interests of a child and an equal time type order could result ‘if it was in the Court’s view ultimately in the child’s best interests for such an order to be made’.

With respect, this interpretation seems somewhat problematic although it may well be accurate at law. On the face of the legislation, s65DAA itself is only triggered where the presumption has been applied. The relevant subsections requiring the court to consider the equal time type provisions both start with:

If a parenting order provides (or is to provide) that a child’s parents are to have ESPR for the child,  the court must consider [equal time or substantial and significant time respectively]

This means that, when the Full Court refers to the requirement to consider an equal time type order, where the presumption has not been applied or been rebutted, this is a consideration at large. It is not a consideration which has to comply with the framework of s65DAA. It is ironic that, where the presumption of ESPR has been applied, the court is obliged to comply with ss65DAA(5) and carefully have regard to the legislatively prescribed matters of ‘reasonable practicability’. Where the presumption has not been applied or been rebutted, perhaps because of family violence there are no specific constraints on the court’s decision-making process for making an equal time type order.

What is the purpose of the exceptions to the ESPR presumption?

If this interpretation is correct, it opens a question about the purpose of ss61DA(2) – (4), the exception provisions in the ESPR presumption. The Full Court has determined that the presumption of ESPR is subject to those listed exceptions. Then it finds that, notwithstanding this, the most important consequence of the application of the presumption – the requirement to consider equal time type arrangements – is not excluded by a refusal to apply the presumption – but rather is just arrived at in a different way.

To take this further – it is generally evidence of abuse or other serious family dysfunction that would lead to a decision not to apply the presumption. Surely this is the very same evidence that would now have to be led to prove to the court why an equal time type order should not be made. In a way, ss61DA(1) is the core provision which, in certain circumstances, triggers s65DAA as a machinery provision. Is it reasonable to require a party to rebut the application of the machinery provision (or the law at large in similar, but less circumscribed terms) when the core provision has already been rejected?

Negotiation and litigation around parenting arrangements will often occur at a time when the parties have no experience or history of sharing care. The father may or may not have played an active parenting role during the relationship, his role may have increased or decreased since separation, there may be no knowledge of how the children would cope with the physical and emotional demands of living in two premises. But whether or not the court has applied ESPR, it is required to examine the possibility of implementing a new, untested arrangement of equal time type shared care.

If equal time type arrangements have to be seriously considered in all cases, including those in which the presumption of s61DA has been rebutted, the exceptions to s61DA seem to be rendered irrelevant to the issue of parenting time.

The Influence of the Objects Clause – s60B

And as with the 1995 reforms, the objects section (s60B) has significant influence in interpreting Part VII of the Act. The Full Court describes it thus:

In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child .

A number of questions arise from this statement.

1. Is s60B(1)(a) really subject to s60B(1)(b)?

The words ‘subject to’ are not actually used in the section, and it does not seem to be correct to say that ss60B(1)(a) is subject to ss60B(1)(b). Subsection 60B(1)(a) is about the benefit of both parents having a meaningful involvement in the lives of their children and ss60B(1)(b) sits as the next point – that children should be protected from physical or psychological harm by being subjected or exposed to abuse. The two subsections are joined by the conjunction ‘and’ as are the following ss60B(1)(c) and (1)(d). All four are separate and distinct objects of Part VII. At times ss60B(1)(a) and (1)(b) may be contradictory or difficult to reconcile – but there is no suggestion that (a) is subject to (b). Perhaps the Court’s use of the phrase ‘subject to’ indicates an implicit pragmatism about how these sections should have been drafted to allow for logical decision-making.

2. Why has the word ‘significant’ crept in?

The passage suggests that equal time type arrangements should be ordered unless there are ‘protective or other significant best interests concerns for the child’. There is no explanation for the addition of the word ‘significant’ and its use would appear to set the bar particularly high before a court can do anything other than follow through the complex set of steps required by the structure of the Act, ‘tending to a result’ of an equal time type order. This is so apparently, even at an interim hearing where the information on which to base the process is limited and the evidence is untested.

Proving that shared care is not in the best interests of a child

It will be very difficult for a parent at an interim hearing to prove that a shared care arrangement is not in the best interests of a child. There is no attempt to disguise the intention of these amendments. As already noted the Full Court said:

 it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.

Although the ‘subject to’ conjunctive phrase is very important in this statement, there is a powerful interplay between the core sections of the Act positively encouraging ESPR orders and the machinery provisions of the equal time type arrangements. The Full Court noted that:

[The mother] did not indicate in her affidavit why a shared arrangement or, if not a shared arrangement, the children spending substantial and significant time with the appellant father, should not occur.

How could she? She would require expert evidence or a family report. Raising the violence in her affidavit was not taken by the Court to be automatically or obviously relevant to the issue of shared care. It did not treat her account of the violence to which she had been subjected as relevant to the question of the time the children should spend with each parent. If even some of the allegations made by the mother were ultimately held to be true, her reluctance for the children to start spending half their time with the father right from the beginning of the separation would be understandable but the new Act renders it difficult for a party to assert such a link without risking categorisation as an unfriendly parent. This is not to suggest that the children should not spend time with their father but what has happened to all the social science research of the last 30 years about the effects on children of witnessing domestic violence and on the connections between domestic violence and child abuse?

In a decision of the Court of Appeal in the United Kingdom, the President of the Court, Dame Butler-Sloss, made a powerful statement about the link between spousal abuse and parenting:

Violence to a partner involves a significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally .

It is critical that all players in the family law system understand and acknowledge this link. A mother’s reluctance for her children to live with a violent former partner for half, or nearly half, the time is understandable and natural – not malicious and obstructive. This does not mean that there should be no contact, but failure to accommodate the mother’s concerns and to label her attitudes as obstructive to the philosophy of shared care risks casting the system back to the thinking of 1976 when it was suggested that a man could be a bad husband but a good parent.

It is known that some abusive men use the law to ‘threaten’ the mothers of their children – or at least to score points. The appeal will have been a huge personal and emotional win for the father in this case and a devastating blow to the mother. She will have lost confidence in her credibility – making it difficult for her to ever consider litigating on the basis of her allegations.

Conclusion

The impression is that, at a practical level, the powerful message of shared parenting may often overwhelm the nominated exceptions where there has been abuse. Although the Full Court was careful to identify that the message of shared care was always ‘subject to’ exceptions, its suggestion that equal time type orders should be considered in all cases – whether or not the fundamental presumption has been applied or refused, leaves the whole complex protective structure of the amendments of little practical effect.

Further, when the Court deals with the actual allegations of violence in this case, it does not describe a legal decision-making path from that abuse to the parenting time outcome. The allegations of abuse had no practical impact on the process and any relevance they should have to the outcome was not explored.

Both the court at first instance and the Full Court were able to side step the abuse perhaps without even quite realising it. Players in the family law system should be wary of this and always ensure that allegations of abuse are dealt with early. A parenting decision made where allegations of violence remain in unresolved limbo may place children at risk. The speculative idealism encouraged by these reforms could triumph dangerously over outcomes for children moulded after a sober reflection of the relevance of any history of abuse. It is appropriate to consider the possibilities of the future but this cannot be done safely in a way that masks critical aspects of the past.

No comments:

"To Stephen,
Thank you for all your support on this special day. Bringing about awareness about Domestic Violence is so very important. Thank you for your choice to stand up against it.
Blessings,
Narelle".
Narelle Warcon, author of Blonde Roots

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.